JUDGMENT of Mr. Justice Geoghegan delivered the 15th day of December 2009
While this appeal raises very important issues, the resolution of those issues does not involve this court in attempting to answer the question of when life begins. It is not a legal issue in this case. The expert evidence on both sides make it clear that there is as yet no definite scientific or medical answer to that question. It is, of course, a question which interests also theologians and philosophers but on the particular view of this case which I have taken, none of the approaches to this question have relevance to the issue on the appeal.
At this early stage, I think I should also make clear that because of the view I have taken on the issues in dispute (which is more or less the same view as that taken by the learned High Court judge) I will not be expressing any opinion as to how the State should regulate unused embryos created in IVF treatment. It emerged at the hearing of the appeal that many countries have put in place regulatory regimes relating to spare embryos. Germany, Italy and the U.K. were cited as examples but there is no regulation whatsoever in Ireland as yet. The only constitutional question which this case raises is whether the spare embryo is one of the “unborn” with the constitutional right to life under Article 40.3.3 of the Constitution. For reasons upon which I will be elaborating, I take the view that “the unborn” protected by that Article are confined to the unborn within the womb. I will be basing this opinion both on the words of the constitutional provision itself and on the history of the crime of abortion in this jurisdiction which was the context in which that provision was inserted into the Constitution by referendum of the people. In addition to the judgment of the learned High Court judge (McGovern J.) to which I have already referred, I gained particular assistance in arriving at my opinion from the written submissions of the Attorney General.
I will proceed now to explain the nature and scope of this appeal. A married couple had a child in the normal way. Some time later they wanted to have a second child. However, in the meantime, the appellant who was the wife had undergone surgery for an ovarian cyst and had lost two thirds of her right ovary. As a consequence of medical advice, it became clear that in order to have another child she would have to undergo IVF treatment. She procured this treatment at the Sims Clinic in Rathgar, Dublin. That treatment involved (inter alia) the removal of eggs from her ovaries and the mixing of the eggs with the sperm of her husband. Because egg retrieval is difficult and painful, the practice in fertility clinics has been to ensure that there would be enough eggs to be fertilised so as to avoid a second retrieval operation. What in practice happened was that the appellant’s ova were mixed with the respondent’s sperm creating six viable embryos. Three of these were immediately implanted into the appellant’s uterus and the others were frozen.
This implantation was successful and the appellant gave birth to a daughter. Around the same time, the marriage broke up, as the respondent had entered into another relationship.
The appellant, being aware of the existence of the three frozen embryos which were the spares, wanted them implanted in her uterus so that she could undergo a further pregnancy and produce a third child. The respondent objects because it would put him into the position that he was forcibly becoming a father, something which he does not want to happen. There is a further context to his objection. It is clear from the evidence given by the appellant that she would have regarded any child born as a consequence of the spare embryo being implanted, as a child of the respondent just as much as a child of the appellant with all the financial and other responsibilities that fatherhood involves. At all material times, the appellant and the respondent were medically advised that the IVF treatment could result in multiple births. If, therefore, the three spare embryos were duly implanted the possibility that triplets would be born could not be ruled out. I am merely recounting the perspective of the appellant as it emerged in evidence without placing any value judgment on it.
The first issue in the case was whether there was an enforceable contract as between the parties entitling the appellant to make use of the spare embryos. The learned trial judge held that there was not. I am in agreement with that finding for much the same reasons as influenced the trial judge but I will elaborate on them more fully in due course. Because of that view which I have taken, I do not find it necessary to consider the legal issue of whether there can be such an enforceable contract and, if so, how determinative it is. The court has been referred to considerable case law emanating from the United States of America, the majority thrust of which is that the fate of spare embryos should be determined by agreement of the parties. Since I am satisfied there was no contract here, I do not find it necessary to review those authorities nor am I to be taken as necessarily agreeing with their conclusions. I would prefer to leave these difficult questions to a case where they genuinely arise. In this particular case, the argument for a contract is outlined and explained in the judgment of the learned trial judge. I should, of course, mention at this stage that McGovern J. delivered himself of two distinct judgments. The first judgment of the 18th July, 2006 dealt with the contract issue. The second judgment, that of the 15th November, 2006 treated of the constitutional issue. It is the contract issue which I now intend to address.
It is not suggested that there was any clear written or oral agreement between the appellant and the respondent as to what was to happen spare embryos. Nevertheless in arguing for a contract, some written documents were relied on by the appellant. These documents were Consents which the clinic required to be signed as a routine part of their procedures. There were four Consent documents in all. The first was entitled “Consent to Treatment Involving Egg Retrieval”. That Consent was signed by the appellant only and by the form she gave her consent to the removal of eggs from her ovaries and the mixing of those eggs with the respondent’s sperm. The second document was a Consent form signed by both parties and entitled “Consent to Embryo Freezing”. By this form both the appellant and respondent agreed to the cryopreservation of the embryo and to take full responsibility on an on-going basis for frozen embryos. The third Consent form was entitled “Husband’s Consent” in which he consented to the treatment and expressed his understanding that he would become the legal father of any resulting child. The fourth and final document was entitled “Consent to Embryo Transfer” which involved the appellant consenting to the placing in her uterus of three embryos.
Like the learned High Court judge, I will elaborate slightly on this. It was clear from the medical evidence that the egg retrieval which is obviously an essential element of the IVF treatment can be awkward and painful. As a consequence, in most countries including Ireland, fertility clinics try to ensure that there be a sufficient number of eggs for fertilisation so that egg retrieval would not have to be undergone a second time. In this particular case nine or ten eggs were retrieved and were mixed with the respondent’s sperm. Of the resulting embryos, six were considered viable. The remainder were not frozen and they were presumably disposed of. Three of the six viable embryos were implanted into the appellant’s uterus and the remaining three were frozen.
The implantation of those three embryos resulted in a pregnancy and a successful birth of a daughter on the 26th October, 2002.
It is clear from the evidence of Dr. Wingfield, the consultant obstetrician and gynaecologist at the National Maternity Hospital, Holles Street that the reason why the standard IVF practice in most countries with the notable exception of Italy and Germany is to try and ensure that there are some spare suitable embryos which can be frozen, is to avoid putting the woman through the repeat painful procedure of egg removal. Indeed I think it useful to quote what she actually said in her witness statement:
“To achieve optimal success rates (still only 20/30% per cycle started) it is necessary to use superovulation. This results in multiple oocytes. The best pregnancy rates occur in cycles where six to ten oocytes are retrieved.
In an ideal world, these oocytes would be fertilised only as required i.e. one or two would be incubated with sperm and if these fertilise they would be placed in the uterus. If fertilisation did not occur, another two eggs could be tried etc. Unfortunately, oocytes do not survive outside the body and must be used within hours of retrieval. It is not yet possible to be able to choose the best quality eggs or the ones which are most likely to be successfully fertilised and the safety of the technology has not been sufficiently validated to routinely freeze oocytes. It is therefore necessary to try to fertilise all of the eggs once retrieved (i.e. they must all be used immediately or they are wasted).
On average, only 50/70% of oocytes will be successfully fertilised if exposed to sperm and a further large proportion of fertilised oocytes will be abnormal and unusable (at least 40%). In older women particularly, the chance of successful blastocyst formation, implantation and healthy pregnancy is low (10% and less if over 40 years. Most doctors and others working in IVF therefore consider it unethical to subject the woman to the risks of superovulation treatment if all oocytes are not then going to be used.
It is only safe to transfer two embryos to the uterus (three in rare cases); otherwise there is an unacceptable risk of multiple pregnancies. It is well proven that multiple pregnancies lead to greatly increased rates of miscarriage, premature birth, neo-natal morbidity and cerebral palsy. Therefore, one or two of the best embryos are transferred and the remainder are frozen, if deemed to be of sufficiently viable.
The purpose of all embryo freezing programmes is to give a couple the best chance to achieve a pregnancy with a maximum of safety. If the woman does not conceive following her first embryo transfer, one or two frozen embryos may be thawed and transferred to her uterus, without the need for further superovulation an oocyte retrieval. For couples who conceive with their first embryo transfer, they may achieve a second pregnancy a few years later using previously frozen embryos. Frozen embryo transfer is medically safer and less expensive than a second fresh IVF cycle.”
Dr. Wingfield goes on to explain that the above practice of IVF which is the norm in Ireland is accepted as best practice in the vast majority of countries. She stated that the majority of couples will quickly use any frozen embryos in order to achieve one or more pregnancies. But she accepts that some couples will end up with unwanted frozen embryos. Interestingly, she makes the point that this could occur for different reasons “e.g. they have had one or more children and their family is now complete or they may separate, one partner dies etc.” Whilst there are no regulations in Ireland she points out that in other jurisdictions the options to deal with unwanted embryos may include donation to another couple, donation for research or simply allowing them to perish.
I do not think that Dr. Wingfield’s expert evidence was in controversy at the trial and I have found her summary of the position very useful. She mentions that there are seven clinics providing IVF services in Ireland with approximately 2,500 fresh IVF and 700 frozen embryo cycles being performed every year. Although there is no statutory regulation, she refers to the Medical Council Guidelines and to the report of the Commission on Assisted Human Reproduction (2004). The Guidelines of the Medical Council and that report are both before the court. The guidelines do not ban embryo freezing and recommend donation of surplus embryos to another couple. The guidelines are not altogether satisfactory and are left somewhat vague. What is satisfactory is the excellent report of the Commission on Assisted Human Reproduction. That report lists and deals with all aspects of the problem. There were forty recommendations. The fourth and ninth of these inter alia are relevant to this case: The fourth reads:
“Appropriate guidelines should be put in place to govern the freezing and storage of gametes and the use of frozen gametes. The regulatory body should, in accordance with statutory guidelines, have power to address cases where gametes are abandoned, where the commissioning couple cannot agree on a course of action, where couples separate or where one or both partner dies or becomes incapacitated.”
The ninth recommendation reads as follows:
“Appropriate guidelines should be put in place by the regulatory body to govern the freezing of excess healthy embryos.”
Unfortunately, unlike most other countries no statutory regulations have been put in place. Running right through most of the documentation produced is the concept of the respect to be shown to the spare embryos but nowhere is there a suggestion that either party can be compelled by the other to become a parent in the absence of agreement. Referring to the document “Consent to Embryo Transfer” the judge went on to say that it was clear from the evidence that the three embryos referred to in that particular form were the embryos which were not frozen and that the purpose of freezing the other embryos was to use them if the first implantation failed. That finding was supported by evidence from both the appellant and the respondent and indeed precise references are given in the judgment. The first implantation having been successful, the judge pointed out that that left the question as to what was to happen to the remaining frozen embryos. He refers to the evidence of both parties and I have also read their evidence. On the basis of the consent form signed and on the oral evidence which he heard, the learned trial judge held that there was no evidence that the respondent gave his express consent to the implantation of the three frozen embryos in the plaintiff’s uterus and he went on to consider whether that consent could be implied. Not only was the finding open to him to make, I do not think that any other finding would have been open having regard to the evidence.
As I have already mentioned, at more or less the time of the birth of the IVF child, the marriage unfortunately broke up. There seems little doubt that there was no prior agreement relating to any of these contingencies whether foreseen or unforeseen. At most, there would have been an understanding that the question of using the frozen embryos in the event of a failure following the first implantation would be considered or indeed that it might be considered for the purpose of producing a second child. Even that is doubtful. I do not consider that any such understanding or agreement would ever have been intended to be a legally binding contract. Before ever one considers the other essential ingredients of a legally enforceable contract such as consideration and “offer and acceptance”, the first essential requirement is that there was an intention to create legal relations. There is nothing in the evidence of either party which supports any such intention. The forms signed were Consent forms required within the clinic system and they cannot be construed as contracts.
I have diverted somewhat, because of course I already mentioned that the judge went on to consider whether, even if there was no express contract, there might have been an implied contract. My first observation on that proposition is that in a domestic agreement between husband and wife of this kind, it would be rare that even express terms would be held to constitute a legally binding contract. It would be extremely rare that an understanding between husband and wife would be held to have ripened into a legally enforceable contract not even containing all the express terms but containing implied terms. The learned trial judge has correctly reviewed the authorities on implied terms and I do not intend to cover that territory. I agree with everything that he says.
I now turn to what is really the more serious issue on the appeal, the question of whether each of the frozen embryos is an “unborn” within the meaning of Article 40.3.3 of the Constitution. That subsection reads as follows:
“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
Without necessarily accepting that in interpreting this subsection, I am not entitled to have regard to the context in which it was inserted into the Constitution (a point to which I will return), I believe, that applying the ordinary rules of interpretation applicable to a statute which at any rate to some extent, permit of context to be taken into account, this constitutional provision is dealing exclusively with the baby in the mother’s womb. Probably, the strongest indicator of this is the reference to “the equal right to life of the mother”. I interpret the subsection as envisaging what I might loosely call “a mother and baby situation”. The State is not conferring a right but rather acknowledging the majority view in the community that the baby in the womb has the right to be born alive but that this is not an absolute right in as much as there could be situations where the continued pregnancy endangered the life of the mother. In this context the expression “equal right” is somewhat strange because, in a sense, what the provision is stating is that in a clash of rights to life between the baby and the mother, the mother’s life is to have priority. I would also attach some significance to the expression “the unborn”. It has been said that this expression was unusual in its nakedness. I do not think that that is altogether correct but its meaning and context may be somewhat unusual. The expression “the unborn” is not by any means unique but normally, far from meaning an actual baby or foetus, it would tend to mean what I might describe as “the as yet unborn” or in other words future existences. The expression in this sense finds its way into two quotations in the Oxford Book of Quotations. I do not believe that the expression “the unborn” would ever be used to describe a stand alone embryo whether fertilised or unfertilised or whether frozen or unfrozen. It has ultimately been accepted on all sides in this appeal that the case does not involve any determination of when life begins. Furthermore, the experts on both sides were in agreement that there is no scientific proof of when life begins. The IVF treatment itself highlights the complexity of the succession of steps in the process leading up to a successful birth. It seems clear on the evidence before the court that pregnancy in any meaningful sense commences with implantation. I think I am entitled to take judicial notice of the fact that the referendum which led to the insertion of this provision in the Constitution was generally known as “The Abortion Referendum”.
This brings me to the question already briefly adverted to, as to the extent to which I can take context into account in interpreting the Article. I have already expressed my view as to what the Article means applying only the ordinary rules of statutory interpretation as distinct from constitutional interpretation. I am not in fact convinced that the rules are identical. Judges play no part in the drafting of a statute, still less in the voting of it into law. Judges, however, are ordinary citizens and do participate in referenda. It would seem to me to be highly artificial if a judge could not also take judicial notice of and to some extent at least, use as an aid to interpretation, the ordinary common understanding of what in context was involved in the referendum. Nobody could dispute that the primary purpose of the referendum was to prevent decriminalisation of abortion without the approval of the people as a whole. Abortion in this jurisdiction was criminalised by the Offences against the Person Act, 1861, an Act carried into the laws of the Irish Free State and in turn carried over under the 1937 Constitution. In theory, there could have been a referendum as to the possible insertion of a provision in the Constitution that the relevant sections in the Offences against the Person Act, 1861 would not be repealed. Those very provisions however had been interpreted in the English courts in a manner which would not have been acceptable to the perceived majority of the Irish people who favoured an absolute ban on abortion. This was the famous case of Rex v. Bourne  1 K.B. 687. The positive assertion in the Constitution of the right to life would have been perceived as preventing any watering down of the criminal law on abortion.
It is appropriate, at this stage, to explain the relevant provisions in the 1861 Act and the aids to their interpretation deriving from their antecedents. This is important because if, as I believe, the insertion of Article 40.3.3 into the Constitution was with a view to preventing repeal or amendment of the existing abortion law, it is essential to understand what exactly that law prohibits.
The two relevant provisions of the Offences against the Person Act, 1861 are sections 58 and 59. Section 58 reads as follows:
“Every woman, being with child, who with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent shall be guilty of felony.”
Section 59 then reads:
“Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or not be with child, shall be guilty of a misdemeanour.”
On the interpretation of these two sections, I find the judgment of Munby J., the English High Court, Queen’s Bench case of R (Smeaton on behalf of the Society for the Protection of Unborn Children) v. The Secretary of State for Health particularly persuasive. In that case Munby J. was dealing with the lawfulness or otherwise of “the morning after pill”. But what he had to say is equally relevant to this case. He takes note first of all of the expression “being with child” in section 58 and he relates it to wording of earlier Acts to which I will be referring. He further points out that sections 58 and 59 create three offences but that common to all three offences is the need to prove either an “intent to procure.. miscarriage” or in the case of an offence under section 59 knowledge of another’s “intent to procure .. miscarriage”. He goes on to point out that this intent to procure a miscarriage was what was required when the offence was a common law offence prior to 1803 (case law to support that is cited) and under every version of the offences created before the 1861 Act i.e., the Acts of 1803, 1828 and 1837. Munby J. sums up the position as follows:
“Given the issue in the present case the last point requires emphasis. The essence of the offence, both at common law and in every version of the statutory regime since 1803 has always been the procuring of ‘miscarriage’. Putting the same point rather differently, ‘miscarriage’ is not a term of art introduced into the law in 1861. It is the word which Parliament and the lawyers have been using in this context for some two hundred years.”
The judge goes on to explain that common to all the three offences was the need to prove that the relevant act was “unlawful”. This requirement gave rise to the English decision of R v. Bourne cited above. As a consequence of Bourne’s case and quite apart from the possibility of a statutory repeal or amendment, there was no guarantee prior to the constitutional amendment, that abortions of the kind not considered “unlawful” in Bourne’s case, might some day be regarded with impunity by Irish courts.
I do not intend to survey in detail the pre-1861 law relating to abortion in a manner analogous to that done by Munby J.
At common law, however, commission of the offence required that the woman was carrying the child and that there had to be quickening of that child. Both at common law and right through the various statutes leading up to the 1861 Act, there was no offence without a miscarriage and “miscarriage” obviously implied previous “carriage”. The 1803 Act used the expression “quick with child”. Likewise the 1828 Act. The 1837 Act required “intent to procure the miscarriage of any woman”.
Both on a simple reading but even more so given its historical context, I would take the view that “the unborn” refers to a child in the womb not yet born. As Hardiman J. points out in his judgment, the Irish language version which of course is the authentic version bears this out.
If it was intended by the Article that if a fertilised embryo was created outside the body of the woman, that embryo would have the constitutional right to life, I cannot imagine that the Article would be worded in that way. There would be no logic, for instance, in conferring the constitutional right to life on a suitable spare embryo duly frozen on the one hand and not to confer it on an unsuitable embryo. I do not believe that the constitutional provision was drafted or indeed voted upon with IVF treatment in mind. There may well be some who would take the view that IVF treatment necessarily destroys “life” but if the intention was that that view would prevail or indeed if the topic was under consideration at all, the Article would have been worded quite differently. Statutory regulation relating to spare embryos is one matter but constitutional protection of their lives is quite another. It is not easy to see how, in practice, the latter could be achieved but at any rate that is a matter for the Oireachtas and for the people and not for the courts. The function of the court is to interpret the Article as it stands and for the reasons which I have indicated, I am satisfied that there is no constitutional provision which has the effect of overriding the express objections of the father.
I want however to make it clear at this stage that I am in agreement with the often expressed view that spare embryos, being lives or at least potential lives, ought to be treated with respect. The absence of a statute or statutory regulations indicating how that respect should be given is undesirable and arguably contrary to the spirit of the Constitution.
It is, however, up to the Oireachtas to provide such regulation. Even if it were possible, it would not be appropriate for the courts to attempt any guidance in this respect. I would be the first to acknowledge that it is not an easy task. One practical issue neatly illustrates the difficulty. It is common knowledge that some will argue against all use of spare embryos for medical purposes and indeed within that group there will be those who would object to even the creation, never mind the retention, of spare embryos. On the other hand, there are many who would bona fide hold the view that some regulated availability of an unimplanted embryo for medical purposes is a use which can enhance life. Hardly a week passes now when some new alleged medical use of an embryo is signposted in the media, one of the latest being a cure for total blindness. The moral and ethical problems in this area are legion. There is no common agreement on their resolution. Since most of these problems are of an ultra modern nature, I rather doubt that there is a constitutional solution to them, but that does not mean that there cannot and indeed should not be regulation by the Oireachtas. If there are constitutional aspects, they do not arise pursuant to the particular provision in the Constitution relied on in this case.
There are two other points which I think it important to make. First of all, even with the traditional methods of conception and pregnancy there is a very high attrition rate.
Dr. Wingfield, among others, gave some detailed evidence on this matter. Developing a view, she expressed in evidence “that a fertilised egg is a long, long way from being a human”. She went on immediately to say the following:
“There are various studies in the literature showing that the attrition rate both in natural conceptions and in in vitrio conception is quite substantial and that the chances of a fertilised egg actually becoming a human being are quite slim. We know from IVF that if you start off with a hundred eggs only 3/4 % of those will actually form a human being.”
It was then put to her did she mean by that that there would be a “successful pregnancy and birth of that child”. She replied in the affirmative but added:
“There are many pitfalls along the way where the processes can go wrong and where development can progress abnormally and where the whole process is aborted because something has gone wrong.”
This part of her evidence arose to some extent from questioning in relation to a statement she had made that although there is a natural tendency to regard the fertilised egg as a “baby” then to use her own words “science indicates that a fertilised egg is unfortunately a long, long way from being a human.” Dr. Wingfield developed that opinion further by saying:
“It is unfortunate that we use the same term to apply to a 1-cell embryo and also to an eight week old embryo or foetus, which you can see on an ultrasound scan, you can hear its heart beat, you can see it moving and certainly that eight week embryo, I think the vast majority of people would regard as a baby and a person, but as a 1-cell entity, which is also called an embryo is a very, very different entity from that… There is a very big difference between an early pre-implantation embryo and an eight week old embryo.”
Interestingly, the very next question put to her by Mr. O’Donnell, counsel for the Attorney General was prefaced by the remark “I think this is not significantly in dispute, and indeed I don’t think there is any serious dispute about the biological facts of the development of embryogenesis and the development of the embryo.” There are mountains of evidence of a similar vein but those extracts, in my view, which are not controversial, illustrate the unlikelihood that the constitutional provision with its relatively short and simple wording could have been intended to cover pre-implantation embryos.
The second additional observation I would make is that the kind of situation which arose in this case, i.e. the marriage breaking up while the frozen embryos were in existence is likely rarely to occur. As already referred to in the judgment, there are sound medical reasons in ease of the mother who wants to have a baby by the IVF method, to provide for spare embryos. Even in the case of a stable marriage, it does not at all follow that following on a successful birth by the IVF method it would be intended or agreed by the couple that the spare embryos would be then used to produce a second child by the same method. The creation of the spare embryos may in many instances be intended merely for the purposes of their use if the first attempt fails, but not for their use if the first attempt succeeds. Again, with some people this may be controversial but with others it may seem perfectly reasonable. In a system of regulation which there should be, these matters can be teased out. But to my mind the complexity of them is itself a further indication that the simple right to life amendment, as drawn up, was not intended to resolve any of these issues. It had the single purpose of protecting the child (and by that expression I include the foetus) in the woman’s womb and nothing more.
I would reject both the contractual and constitutional grounds of appeal and would, therefore, dismiss the appeal.